Page 1 of 6UNITED STATES DISTRICT COURTEASTERN DISTRICT OF VIRGINIAAlexandria DivisionUNITED STATES OF AMERICAv.KIM DOTCOM,
et al.
,Defendants)))))))Criminal No. 1:12CR3
GOVERNMENT’S RESPONSE TO DEFENDANTMEGAUPLOAD LIMITED’S REQUEST FOR JUDICIAL NOTICE
Defendant Megaupload Limited (“Megaupload”) has now filed its eighth pleading
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demanding that this Court take the unprecedented step of granting the company immunity from
1
See
Motion of Specially Appearing Defendant Megaupload Limited to DismissIndictment for Lack of Personal Jurisdiction (July 3, 2012) (Dkt. 114) & Memorandum of Law inSupport of Motion of Specially Appearing Defendant Megaupload Limited to DismissIndictment for Lack of Personal Jurisdiction (July 3, 2012) (Dkt. 115); Rebuttal Memorandum of Law in Further Support of Motion of Specially Appearing Defendant Megaupload Limited toDismiss Indictment for Lack of Personal Jurisdiction (July 18, 2012) (Dkt. 118); Notice of Supplemental Authority (July 24, 2012) (Dkt. 119); [Proposed] Supplemental Memorandum of Law in Further Support of Motion of Specially Appearing Defendant Megaupload Limited toDismiss Indictment for Lack of Personal Jurisdiction (July 31, 2012) (Dkt. 120-1); RebuttalMemorandum in Support of Motion of Specially Appearing Defendant Megaupload Limited for Leave to File a Supplemental Memorandum in Further Support of its Motion to Dismiss theIndictment for Lack of Personal Jurisdiction (Aug. 6, 2012) (Dkt. 123); Renewal of SpeciallyAppearing Defendant Megaupload Limited’s Request for Dismissal of the Indictment WithoutPrejudice (Nov. 19, 2012) (Dkt. 146) & Memorandum of Law in Support of Renewal of Specially Appearing Defendant Megaupload Limited’s Request for Dismissal of the IndictmentWithout Prejudice (Nov. 19, 2012) (Dkt. 147); Rebuttal Memorandum in Support of Renewal of Specially Appearing Defendant Megaupload Limited’s Request for Dismissal of the SupersedingIndictment Without Prejudice (Jan. 29, 2013) (Dkt. 163); and Specially Appearing DefendantMegaupload Limited’s Request for Judicial Notice in Support of its Renewed Request for Dismissal of the Superseding Indictment Without Prejudice (Apr. 18, 2013). The request for dismissal applies only to Defendant Megaupload and not to any of the other defendants. TheUnited States continues to believe that there is a conflict of interest for defense counsel to appear on behalf of Megaupload, much less to obtain any form of dismissal of the charges that affect
Case 1:12-cr-00003-LO Document 172 Filed 05/02/13 Page 1 of 7 PageID# 2247
Page 2 of 6criminal prosecution, simply because, despite operating a business centered in this District, thecompany elected not to maintain a brick-and-mortar office here or elsewhere in the United States. In its most recent motion, Megaupload asks this Court to take judicial notice of anOctober 25, 2012 letter written from the Department of Justice to the Advisory Committee on theCriminal Rules proposing amendments to Federal Rule of Criminal Procedure 4. The United States takes no position regarding the request for judicial notice but wishes to correct thedefendant’s clear mischaracterizations of the Department’s position in the letter. And becausethe United States still opposes the broader relief requested — temporary dismissal,
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without prejudice, of the pending criminal charges against the corporate entity of Megaupload (whileleaving the charges intact against all the other defendants) — the government brings to theCourt’s attention a recent opinion from this district,
United States v. Kolon Industries, Inc.
, inwhich the District Court concluded that the mailing provision of Rule 4 is not a requirement of valid service. 2013 WL 682896, *5–6 (E.D. Va. Feb. 22, 2013).
A.
The Department’s October 25, 2012 letter is consistent with the government’sposition here that this Court has personal jurisdiction over Megaupload.
The U.S. Department of Justice routinely recommends amendments to legislation and rules, including the Federal Rules of Criminal Procedure. In a letter dated October 25, 2012, theDepartment wrote to the Advisory Committee on the Criminal Rules with suggestions onother law firm clients and interests; such arguments from previous government pleadings areincorporated herein by reference.
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As previously indicated in the government’s pleadings, due to the repeated delaysrequested by the controlling defendants in New Zealand, it is likely that any “temporary”dismissal would be permanent and contrary to the interests of justice.
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Page 3 of 6improving the clarity of Rule 4.
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In the instant motion, Megaupload cherry-picks portions of theletter and quotes them out of context to try and create the appearance of inconsistency. But whenread in its entirety, the letter (as well as the Rules Committee Agenda, cited by Megaupload on page 6 of the motion) plainly supports the government’s position here that Rule 4 was never intended to be an obstacle to prosecutions of foreign corporations who commit crimes in theUnited States, and, in addition, that this Court has personal jurisdiction over Megaupload.After a brief introduction, the Department’s letter (at 1–2) begins with a bedrock principleof criminal law, one that applies equally to both organizations and natural persons: “When a person located abroad violates the laws of the United States, that person may be held criminallyliable despite the fact that the person has never set foot in the United States.” The Departmentthen explains how foreign corporations — such as Defendant Megaupload here — have beenmisusing Rule 4 to gain “an undue advantage” over the government relating to the initiation of criminal proceedings: “While foreign corporations and other organizations may be punished for violations of United States law, even if they have not established a formal presence in the United States, Rule 4 repeatedly has been construed to substantially impair prosecution of foreignorganizations — simply because they do not have an agent or maintain a mailing address withinthe United States.”
Id
. at 3. The Department never concedes, as Megaupload wrongly claims,that a proper interpretation of Rule 4 would bar the company’s prosecution. On the contrary, theletter expresses the Department’s concern that “other courts will adopt the reasoning of
Johnson Matthey
,
Pangang Group
and similar cases — reasoning we believe is contrary to sound public
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A copy of the letter is attached as Exhibit 1 to Specially Appearing DefendantMegaupload Limited’s Request for Judicial Notice in Support of its Renewed Request for Dismissal of the Superseding Indictment Without Prejudice (Apr. 18, 2013) (Dkt. 171).
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